{"id":3208,"date":"2015-06-02T13:06:39","date_gmt":"2015-06-02T18:06:39","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=3208"},"modified":"2015-06-02T13:06:39","modified_gmt":"2015-06-02T18:06:39","slug":"june-2015-update-to-climate-litigation-charts","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2015\/06\/02\/june-2015-update-to-climate-litigation-charts\/","title":{"rendered":"JUNE 2015 UPDATE TO CLIMATE LITIGATION CHARTS"},"content":{"rendered":"

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our\u00a0U.S.<\/a>\u00a0and\u00a0non-U.S.<\/a>\u00a0climate litigation charts. \u00a0If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.<\/p>\n

Here are the latest additions to the\u00a0<\/strong>Climate Case Chart<\/a><\/strong><\/p>\n

Update #75 (June 2, 2015)<\/strong><\/p>\n

FEATURED DECISION<\/p>\n

<\/strong>Colorado Federal Court Held That Environmental Review for Mining Plan Modifications Must Consider Coal Combustion Impacts<\/strong><\/p>\n

The federal district court for the District of Colorado ruled that the environmental review for two mining plan modifications that changed the location and increased the amount of coal to be mined had not complied with the National Environmental Policy Act (NEPA). The court ruled that WildEarth Guardians had organizational standing to bring the action, and that the action was neither moot nor barred by the doctrines of laches or forfeiture. In particular, the court noted that the federal defendants, which included the United States Office of Surface Mining Reclamation and Enforcement (OSM) and the Secretary of the Interior, could not invoke laches when OSM had not complied with \u201cits most basic NEPA duty of providing public notice.\u201d On the merits, the court held that OSM\u2019s consideration of direct and indirect air quality impacts was insufficient. The court said that a NEPA review should consider coal combustion impacts as indirect effects of the mining plan modifications and that uncertainty about the timing or rate of the coal combustion or the type of emissions controls that would be in place could not justify ignoring the combustion impacts. The court, however, declined to vacate the two mining plan modifications. At one of the mines, all of the federal coal covered by the modification had already been mined. At the other mine, the court found that vacatur was not warranted given potential hardship it could cause to mine employees and the power plant to which the mine supplied coal, and given that mining had occurred in the area since the 1970s, that its impacts had been studied over the years, that state agencies had considered the impacts of the mining plan modifications, and that OSM had changed its NEPA practices. WildEarth Guardians v. United States Office of Surface Mining Reclamation and Enforcement<\/em><\/a>, No. 13-cv-00518 (D. Colo. order May 8, 2015): added to the \u201cStop Government Action\/NEPA\u201d slide.<\/p>\n

<\/strong><\/p>\n

DECISIONS AND SETTLEMENTS<\/p>\n

After Corps Prepared New Environmental Report, Alaska Federal Court Upheld Issuance of Fill Permit in National Petroleum Reserve<\/strong><\/p>\n

The federal district court for the District of Alaska upheld the approval by the United States Army Corps of Engineers (Corps) of a permit to fill wetlands in the National Petroleum Reserve in Alaska for development of a drilling site. The Corps prepared a supplemental information report (SIR) after the court held<\/a> in 2014 that the Corps had not provided a reasoned explanation for its decision not to prepare a supplemental environmental impact statement (SEIS) to update a 2004 EIS. Pursuant to an agreement between the parties and an order of the court, the SIR included a discussion of whether new information about climate change necessitated preparation of an SEIS. The Corps considered both the impact of climate change on the project and the project\u2019s impacts on climate change. The court agreed with plaintiffs that the Corps had conducted \u201conly a minimalist review\u201d of the impacts of climate change. Nevertheless, the court found that this assessment was adequate given the absence of detailed instructions from the court regarding the analysis the Corps should have performed and given that the plaintiffs had not identified specific climate change information the Corps should have considered. The court also found that the Corps\u2019 determinations that other new information and changes to the project did not require an SEIS were not arbitrary and capricious, and that the Corps had an adequate basis for its determination that the project was the Least Environmentally Damaging Practicable Alternative as required under Section 404 of the Clean Water Act. Judgment was entered for the defendants on May 29, 2015. Kunaknana v. United States Army Corps of Engineers<\/em><\/a>, No. 3:13-cv-00044 (D. Alaska May 26, 2015): added to the \u201cStop Government Action\/NEPA\u201d slide.<\/p>\n

Oregon Circuit Court Said Public Trust Doctrine Did Not Compel State to Address Climate Change<\/strong><\/p>\n

In an action in which Oregon children and their families argued that the public trust doctrine compelled the State to take action to reduce carbon dioxide emissions, an Oregon Circuit Court ruled that the State\u2019s public trust doctrine applied only to submerged and submersible lands, and not to other resources such as the atmosphere, waters of the State, beaches and shorelands, and fish and wildlife. With respect to the atmosphere, the court questioned \u201cwhether the atmosphere is a \u2018natural resource\u2019 at all.\u201d The court further declared that the State did not have a fiduciary obligation to protect submerged and submersible lands from the impacts of climate change, concluding that the public trust doctrine merely restricted the ability of the State to entirely alienate such lands. The court also said that granting the relief sought by plaintiffs could violate the separation of powers doctrine, and that the court would not have had sufficient information before it to make a determination as to appropriate concentrations of carbon dioxide in the atmosphere. The plaintiffs have indicated<\/a> that they will appeal the decision. An Oregon appellate court previously reversed<\/a> the circuit court\u2019s determination that it did not have jurisdiction over the lawsuit. Chernaik v. Brown<\/em><\/a>, No. 16-11-09273 (Or. Cir. Ct. opinion and order May 11, 2015): added to the \u201cCommon Law Claims\u201d slide.<\/p>\n

D.C. Circuit Denied Rehearing in Challenges to EPA Implementation of Greenhouse Gas Requirements<\/strong><\/p>\n

The D.C. Circuit issued orders denying petitions for rehearing of its 2013 decision that dismissed challenges by Texas, Wyoming, and industry groups to EPA rules that imposed federal permitting requirements for greenhouse gases. The petitioners had argued that rehearing was necessary because the Supreme Court\u2019s decision in Utility Air Regulatory Group v. EPA<\/em> negated the D.C. Circuit\u2019s dismissal of the proceedings on standing grounds. The D.C. Circuit\u2019s 2013 ruling was grounded in its interpretation of the Clean Air Act\u2019s Prevention of Significant Deterioration (PSD) permitting requirements as \u201cself-executing\u201d for stationary sources that emitted greenhouse gases\u2014the D.C. Circuit therefore reasoned that petitioners\u2019 injuries were caused by the statute itself and not by EPA\u2019s actions. Petitioners argued in their petitions for rehearing that since the Supreme Court expressly rejected this interpretation, the D.C. Circuit\u2019s ruling should be vacated and the petitions for review should be granted or the matter reheard. The denial of the petitions for rehearing came after the D.C. Circuit ordered<\/a> EPA in April 2015 to rescind regulations that required PSD and Title V permits solely based on a source\u2019s greenhouse gas emissions. Texas v. EPA<\/em>, Nos. 10-1425 et al., Utility Air Regulatory Group v. EPA<\/em>, Nos. 11-1037 et al. (D.C. Cir. order denying panel rehearing <\/a>and order denying rehearing en banc<\/a> May 4, 2015): added to the \u201cChallenges to Federal Action\u201d slide.<\/p>\n

EPA to Respond by July 31 to Sierra Club Request for Objection to Air Permit for New Hampshire Coal-Fired Power Plant<\/strong><\/p>\n

Under the terms of a proposed consent decree filed in the federal district court for the District of Columbia, the United States Environmental Protection Agency (EPA) would have to respond by July 31, 2015 to a Sierra Club petition submitted in July 2014 that asked the agency to object to an air pollution operating permit issued for a coal-fired power plant in Portsmouth, New Hampshire. Sierra Club filed a lawsuit<\/a> in December 2014 to compel EPA to respond to the petition. Sierra Club v. McCarthy<\/em><\/a>, No. 4:14-cv-02149 (D.D.C., proposed consent decree filed May 1, 2015): added to the \u201cChallenges to Coal-Fired Power Plants\u201d slide.<\/p>\n

Court of Federal Claims Said Hurricane Katrina Flooding Constituted Temporary Taking<\/strong><\/p>\n

A United States Court of Federal Claims held that the federal government was liable for a temporary taking caused by certain flooding during Hurricane Katrina and subsequent storms. The court found that the plaintiffs, who were property owners in St. Bernard Parish or the Lower Ninth Ward of the City of New Orleans, had established that the flooding of their properties was caused by the U.S. Army Corps of Engineers\u2019 construction, expansions, operation, and failure to maintain the Mississippi River-Gulf Outlet (MR-GO), a 76-mile-long navigational channel. One federal government argument rejected by the court was that the flooding was caused, not by MR-GO, but by subsidence, sea level rise, and land loss. With respect to this issue, the court said: \u201cAlthough subsidence, sea level rise, and land loss took their toll on the region, the evidence in this case demonstrates that the MR-GO had the principal causal role in creating the environmental damage \u2026.\u201d Sabin Center Fellow Jennifer Klein wrote<\/a> about this case in May. St. Bernard Parish Government v. United States<\/em><\/a>, No. 1:05-cv-01119 (Fed. Cl. May 1, 2015): added to the \u201cAdaptation\u201d slide.<\/p>\n

Author of 2006 Report to Congress on Climate Change Withdraws Lawsuit Against Climate Science Blogger<\/strong><\/p>\n

In March 2014, Edward Wegman, the lead author of a 2006 report to Congress that purported to undermine the scientific basis for climate change, filed a lawsuit<\/a> against John Mashey<\/a>, a computer scientist who studies \u201cclimate science & anti-science and energy issues\u201d and who has written about these issues in various venues, including DeSmogBlog<\/a>, Skeptical Inquirer<\/a>, and Deep Climate<\/a>. Wegman alleged that Mashey\u2019s writings about the 2006 report\u2014in which Mashey asserted numerous problems with the report, including a significant amount of plagiarized text\u2014caused Wegman to be investigated by his university and to lose his position as an editor of a journal. Wegman asserted claims of tortious interference with contract, common law conspiracy, and statutory conspiracy. The action was originally filed in Virginia state court but was removed to the federal district court for the Eastern District of Virginia. On April 30, 2015, Wegman filed a notice of voluntary dismissal. A parallel action asserting the same claims was filed by another author of the 2006 report, Yasmin Said, and was also withdrawn. Wegman v. Mashey<\/em>, No. 1:15-cv-00486 (E.D. Va. notice of voluntary dismissal<\/a> Apr. 30, 2015): added to the \u201cClimate Protesters and Scientists\u201d slide.<\/p>\n

EAB Upheld FutureGen Carbon Sequestration Permits<\/strong><\/p>\n

EPA\u2019s Environmental Appeals Board (EAB) denied review of four underground injection control permits for the injection and storage of carbon dioxide. The permits were issued in conjunction with plans for the now-suspended FutureGen carbon capture and storage project in Illinois. The EAB concluded that the petitioners, who owned property in the vicinity of the project, had identified no clear error of fact or law, abuse of discretion, or matter of policy that warranted EAB review. In re FutureGen Industrial Alliance, Inc.<\/em><\/a>, Appeal Nos. UIC 14-68; UIC 14-69; UIC 14-70; UIC 14-71 (EAB Apr. 28, 2015): added to the \u201cChallenges to Coal-Fired Power Plants\u201d slide.
\nNEW CASES, MOTIONS, AND NOTICES<\/p>\n

Rehearing Petition Sought Vacatur of EPA\u2019s BACT Rules for Greenhouse Gas Emissions from Stationary Sources <\/strong><\/p>\n

<\/em>After the D.C. Circuit determined in April 2015 that the Supreme Court\u2019s decision in Utility Air Regulatory Group v. EPA <\/em>did not require vacating EPA\u2019s permitting regulations for greenhouse gas emissions from stationary sources, petitioners asked for panel rehearing and rehearing en banc. The petitioners contended that the D.C. Circuit should have vacated EPA\u2019s regulations requiring sources subject to the Prevention of Significant Deterioration permit program solely due to their emissions of other pollutants to use best available control technology (BACT) to reduce greenhouse gas emissions. The petitioners argued that the Supreme Court in UARG v. EPA<\/em> had held that these BACT provisions were defective because, among other reasons, they did not establish a de minimis<\/em> level of greenhouse gas emissions below which BACT would not be required. It therefore was inappropriate, the petitioners said, for the D.C. Circuit to allow EPA \u201cmerely to \u2018consider,\u2019 per its own ruminations, whenever it feels so inclined,\u201d the extent to which UARG v. EPA<\/em> required revisions to the BACT provisions. The petitioners also contended that the D.C. Circuit\u2019s amended judgment was at odds with its own precedent concerning when remand without vacatur is appropriate. Coalition for Responsible Regulation v. EPA<\/em>, Nos. 09-1322 et al.; Coalition for Responsible Regulation v. EPA<\/em>, Nos. 10-1073 et al.; Coalition for Responsible Regulation v. EPA<\/em>, Nos. 10-1092 et al.; American Chemistry Council v. EPA<\/em>, Nos. 10-1167 et al. (D.C. Cir., petition for rehearing<\/a> May 26, 2015): added to the \u201cChallenges to Federal Action\u201d slide.<\/p>\n

Sierra Club Filed Challenge to FERC Approvals of Corpus Christi LNG Facilities<\/strong><\/p>\n

On May 11, 2015, Sierra Club filed a petition for review in the D.C. Circuit Court of Appeals seeking to overturn the Federal Energy Regulatory Commission\u2019s (FERC\u2019s) approval of liquefied natural gas (LNG) export and import facilities on Corpus Christi Bay in Texas, as well as a 23-mile-long pipeline and two compressor stations. Five days earlier, FERC had denied Sierra Club\u2019s request for a rehearing of its order authorizing these projects. Sierra Club has asserted various omissions in FERC\u2019s environmental review of the project, including failure to consider both the impacts of induced natural gas production and the potential impacts on U.S. electric sector air emissions due to power generators shifting from gas to coal as result of export-driven rises in natural gas prices. Sierra Club has also argued that FERC failed to take a hard look at the impacts of the project\u2019s emissions of greenhouse gases. In its order denying a rehearing, FERC said that the National Environmental Policy Act did not require it to analyze the impacts of additional natural gas production as an indirect effect of the projects or in its analysis of the projects\u2019 cumulative effects. FERC also said that Sierra Club had not produced any evidence to support the theory that the project would result in a shift to domestic coal use for electricity production and indicated that reliance on such a theory would require FERC \u201cto engage in speculation upon speculation.\u201d FERC also found that its analysis of impacts on greenhouse gas emissions and climate change was consistent with the Council on Environmental Quality\u2019s revised draft guidance and was otherwise adequate. Sierra Club v. Federal Energy Regulatory Commission<\/em><\/a>, No. 15-1133 (D.C. Cir., filed May 11, 2015); In re Corpus Christi Liquefaction, LLC<\/em><\/a>, Nos. CP12-507-001, CP12-508-001 (FERC, order denying reh\u2019g May 6, 2015): added to the \u201cStop Government Action\/NEPA\u201d slide.<\/p>\n

Petition for Rehearing Asked D.C. Circuit to Look Again at EPA Rule That Deferred Regulation of Biogenic Carbon Dioxide<\/strong><\/p>\n

Industry groups filed a petition for rehearing of the D.C. Circuit Court of Appeals decision in 2013 that vacated an EPA rule that deferred regulation of \u201cbiogenic\u201d carbon dioxide from non-fossil fuel carbon dioxide sources such as ethanol. This litigation had been on hold while other proceedings challenging EPA\u2019s regulatory regime for greenhouse gas emissions made their way to the Supreme Court, culminating in the Supreme Court\u2019s decision in Utility Air Regulatory Group v. EPA<\/em> in June 2014 and eventually in the D.C. Circuit\u2019s amended judgment in April 2015. The industry groups argued in their petition for rehearing that the D.C. Circuit needed to consider UARG v. EPA\u2019s <\/em>impact on the rule deferring regulation of biogenic carbon dioxide, given that the \u201cDeferral Rule\u201d amended the \u201cTailoring Rule,\u201d which was partially invalidated by UARG v. EPA<\/em>. The industry groups also contended that the D.C. Circuit should have considered remand without vacatur as an appropriate remedy and that the D.C. Circuit had erred in finding that the record did not support the Deferral Rule. Center for Biological Diversity v. EPA<\/em><\/a>, No. 11-1101 (D.C. Cir., petition for rehearing May 11, 2015): added to the \u201cForce Government to Act\/Clean Air Act\u201d slide.<\/p>\n

Environmental Groups Challenged FERC Approval of Maryland LNG Project After FERC Denied Rehearing<\/strong><\/p>\n

On May 6, 2015, environmental groups filed a petition for review of FERC\u2019s authorization of the construction and operation by Dominion Cove Point LNG, LP, of liquefaction and terminal facilities for the export of liquefied natural gas (LNG) in Cove Point, Maryland, and associated pipeline facilities to transport natural gas to the LNG terminal facilities. On May 4, 2015, FERC had denied several requests for rehearing. In denying the rehearing requests, FERC concluded, among other things, that it was not required to consider the impacts of production activities in the Marcellus Shale region because they were not sufficiently causally related to constitute indirect effects of the Cove Point project. FERC also affirmed its finding \u201cthat impacts from additional shale gas development supported by LNG export projects are not reasonably foreseeable.\u201d FERC also stood by its consideration of the project\u2019s direct greenhouse gas emissions and said that it was not required to consider air emissions and climate change impacts of such emissions from the transportation and ultimate consumption of gas exported from the Cove Point project. FERC rejected the contention that it had not adequately considered potential climate change impacts on the project, including impacts due to severe winds and sea level rise. EarthReports, Inc. (dba Patuxent Riverkeeper) v. Federal Energy Regulatory Commission<\/em><\/a>, No. 15-1127 (D.C. Cir., filed May 7, 2015); In re Dominion Cove Point LNG, LP<\/em><\/a>, No. CP13-113-000 (FERC, order denying rehearing and stay May 4, 2015): added to the \u201cStop Government Action\/NEPA\u201d slide.<\/p>\n

Colorado Federal Court Stays Challenge to Environmental Review for Coal Lease After Parties Indicate They May Settle<\/strong><\/p>\n

In a lawsuit challenging the environmental review for a coal lease where the mine was the sole source of coal for a power plant in Utah, the court granted a joint motion for a stay after the parties indicated that they believed they could reach a settlement. The lawsuit primarily concerns local air impacts. WildEarth Guardians v. United States Bureau of Land Management<\/em>, No. 1:14-cv-01452 (D. Colo. joint motion to stay briefing schedule<\/a> granted Apr. 6, 2015): added to the \u201cStop Government Action\/NEPA\u201d slide.
\n<\/strong><\/p>\n

 <\/p>\n

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Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our\u00a0U.S.\u00a0and\u00a0non-U.S.\u00a0climate litigation charts. \u00a0If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com. Here are the latest additions to the\u00a0Climate Case Chart […]<\/p>\n","protected":false},"author":1434,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[5673],"tags":[],"class_list":{"0":"post-3208","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-litigation","7":"czr-hentry"},"yoast_head":"\nJUNE 2015 UPDATE TO CLIMATE LITIGATION CHARTS - Climate Law Blog<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/blogs.law.columbia.edu\/climatechange\/2015\/06\/02\/june-2015-update-to-climate-litigation-charts\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"JUNE 2015 UPDATE TO CLIMATE LITIGATION CHARTS - Climate Law Blog\" \/>\n<meta property=\"og:description\" content=\"Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our\u00a0U.S.\u00a0and\u00a0non-U.S.\u00a0climate litigation charts. \u00a0If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com. 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